In re Deang

• Decision Date: 16 June 2017
• Docket Number: Interim Decision #3896
• Citation: 27 I&N Dec. 57
• Parties: Matter of Bepean Joseph DEANG, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

27 I&N Dec. 57

Matter of Bepean Joseph DEANG, Respondent

Interim Decision #3896

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

June 16, 2017

(1) An essential element of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2012), is that an offender must receive property with the "knowledge or belief" that it has been stolen, and this element excludes a mens rea equivalent to a "reason to believe."

(2) A conviction for receipt of a stolen motor vehicle under section 32-4-5 of the South Dakota Codified Laws categorically does not define an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act because it is indivisible with respect to the necessary mens rea and only requires, at a minimum, that an offender have a "reason to believe" that the vehicle received was stolen.

FOR RESPONDENT: Bradley Kyle Jenkins, Esquire, Silver Spring, Maryland

FOR THE DEPARTMENT OF HOMELAND SECURITY: Kenneth R. Knapp, Assistant Chief Counsel

BEFORE: Board Panel: PAULEY and CREPPY, Board Members. Dissenting Opinion: MALPHRUS, Board Member.

PAULEY, Board Member:

In a decision dated September 22, 2016, an Immigration Judge terminated removal proceedings after determining that the respondent was not removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2012).¹ The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Sudan and a lawful permanent resident of the United States. On March 9, 2016, the respondent was convicted in South Dakota of receipt of a stolen motor vehicle, in violation of section 32-4-5 of the South Dakota Codified Laws and was sentenced to a term of imprisonment of 5 years. Section 32-4-5 provides in pertinent part:

Any person who . . . shall have in his possession any motor vehicle which he knows, or has reason to believe, has been stolen . . . shall be guilty of a Class 5 felony.

On appeal, the DHS contends that the Immigration Judge improperly relied on Matter of Sierra, 26 I&N Dec. 288 (BIA 2014), in support of her determination that the respondent's conviction was not a predicate for removal under section 101(a)(43)(G) of the Act. The DHS argues that we limited the applicability of that decision to cases arising in the United States Court of Appeals for the Ninth Circuit. See id. at 290 ("[W]e hold that under the law of the Ninth Circuit, the mental state of 'reason to believe' in section 205.273(1) [of the Nevada Revised Statutes] is insufficient for attempted possession of a stolen motor vehicle in violation of [Nevada law] to qualify categorically as an aggravated felony 'theft offense (including receipt of stolen property).'"). Whether receipt of a stolen motor vehicle under South Dakota law is an aggravated felony is a question of law that we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2017).

II. ANALYSIS

We agree that Matter of Sierra does not control the outcome of this case, which arises within the jurisdiction of the Eighth Circuit. Indeed, in Matter of Sierra we expressly "reserve[d] the question of what Congress meant by the term 'receipt of stolen property' in section 101(a)(43)(G) of the Act for a future case where circuit law does not dictate that such an offense requires a showing that the actor had an intent to deprive the owner of his property." Matter of Sierra, 26 I&N Dec. at 292 n.1. We are unaware of any cases from the Eighth Circuit addressing this specific question.

However, as we explain below, we are not persuaded that the Immigration Judge's decision to terminate proceedings should be disturbed. In this regard, we note that after Matter of Sierra was issued, the Fifth Circuit joined the Ninth Circuit in holding that an aggravated felony receipt of stolen property offense requires that an offender have an intent to deprive the owner of the rights and benefits of ownership of the property. United States v. Sanchez-Rodriguez, 830 F.3d 168, 174 (5th Cir. 2016). Further, we are unaware of any contrary Federal court authority.

We conclude that the Fifth and Ninth Circuits are correct in holding that a necessary element of a receipt of stolen property offense is an intent to deprive the owner of his or her property. We observe that this shared element is likely responsible for Congress' decision to group within section 101(a)(43)(G) the aggravated felonies of theft and receipt of stolen property, which otherwise contain several nonmatching features and constitute distinct and separate offenses. See, e.g., Matter of Alday-Dominguez, 27 I&N Dec. 48, 50 (BIA 2017) (observing that "'receipt of stolen property' is not merely a subset of 'theft' as that term is used in section 101(a)(43)(G) of the Act, because each can be considered to be a distinct and separate offense" (quoting Matter of Cardiel, 25 I&N Dec. 12, 14 (BIA 2009))).

We cannot infer that a violator who received property with a "reason to believe" that the property was stolen (or a similar mens rea) intended to deprive the true owner of the rights and benefits of ownership. This is so because such a violator need not be actually aware of the stolen character of the item received in order to be convicted of the offense. Instead, the prosecution need only establish that he or she should have been aware of the fact that such property was stolen when considering the circumstances presented. Accordingly, since a necessary element of both generic theft and receipt of stolen property offenses is an intent to deprive the owner of the rights or benefits of the property taken or received, a receipt of stolen property offense committed with a mens rea of "reason to believe" (or a similar mental state) cannot fall within the generic definition of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act. See Sanchez-Rodriguez, 830 F.3d at 172-73 (concluding that a conviction under a Florida statute that merely requires proof that a violator trafficked in "property that he or she . . . should know was stolen" is not categorically one for an aggravated felony since "it does not require proof of the specific 'intent to deprive the owner of rights and benefits of ownership'" (emphasis added)).

An examination of Federal and State statutes in existence when Congress added "receipt of stolen property" to the Act bolsters our conclusion in this regard. The Act does not define the phrase "receipt of stolen property" in section 101(a)(43)(G), nor did Congress cross-reference a Federal statute in that provision. Therefore, to determine whether there is a general understanding as to the requisite mental state for an aggravated felony receipt of stolen property offense, we may rely, at least in part, on an examination of the Federal and State statutes that existed in 1994, when Congress enacted section 101(a)(43)(G) of the Act,² as well as other authoritative sources suchas the Model Penal Code that define this species of offense. See Matter of Cardiel, 25 I&N Dec. at 17 (defining the phrase "receipt of stolen property" in section 101(a)(43)(G) of the Act "based on the 'generic, contemporary meaning' of the statutory words at the time the statute was enacted" (quoting Taylor v. United States, 495 U.S. 575, 598 (1990))).

In examining Federal and State statutes contemporaneous to the addition of "receipt of stolen property" offenses to section 101(a)(43) of the Act, we place particular importance on Federal law because we are interpreting a congressional enactment. See Matter of Alvarado, 26 I&N Dec. 895, 900 (BIA 2016) (relying to a "significant degree" on the Federal perjury statute to determine the scope of aggravated felony perjury under section 101(a)(43)(S) of the Act); Matter of M-W-, 25 I&N Dec. 748, 751 (BIA 2012) (finding the Federal murder statute to be "a significant point of reference" in defining the meaning of aggravated felony murder in section 101(a)(43)(A) of the Act). In this regard, we find it significant that in 1994 nearly a dozen separate Federal statutes proscribing the receipt of stolen property required the Government to prove that an offender had received the property, knowing it had been stolen. See 18 U.S.C. §§ 641, 659, 662, 668(b)(2), 880, 1660, 1708, 2113(c), 2313(a), 2315, 2317 (1994); see also United States v. Fields, 466 F.2d 119, 120-21 (2d Cir. 1972).³ In 1994, 15 States also required proof that an offender had "knowingly"⁴ received stolen property.⁵

Section 223.6(1) of the Model Penal Code defines the offense of "receiving stolen property," in pertinent part, as "purposely receiv[ing], retain[ing], or dispos[ing] of movable property of another knowing it has been stolen, or believing that it has probably been stolen." (Emphasis added.) In 1994, the general receipt of stolen property statutes in 14 States mirrored the language of the Model Penal Code.⁶ We consider these jurisdictions to be in the same category as those that solely employed a "knowing" mental state, because both knowledge and belief require an awareness of the stolen nature of the property, with the difference only relating to the degree of certainty of such a belief. See Matter of Bahta, 22 I&N Dec. 1381, 1390 (BIA 2000) ("As expressed in the Model Penal Code, . . . the predominant modern view is that the term 'receiving stolen property' is now used in a generic sense to encompass . . . the knowing possession, retention, withholding, or concealing of property with knowledge that it has been stolen." (emphasis added)). As noted, a mental state of "reason to believe," by contrast, implies only that the offender should have been aware of the...